[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)]
[Rules and Regulations]
[Pages 93842-93850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30876]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 161017970-6999-02]
RIN 0648-XE976


Fisheries of the Northeastern United States; Summer Flounder, 
Scup, and Black Sea Bass Fisheries; 2017-2018 Summer Flounder 
Specifications and Announcement of 2017 Summer Flounder and Black Sea 
Bass Commercial Accountability Measures

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: In this rule, NMFS issues revised final 2017 and 2018 
specifications for the summer flounder fishery, which include 
commercial and recreational catch limits and prohibit federally 
permitted commercial fishing vessels from landing summer flounder in 
Delaware in 2017 due to continued quota repayment from previous years' 
overages. NMFS also announces a black sea bass commercial 
accountability measure that revises the 2017 annual catch target and 
commercial quota to account for a catch overage in 2015. These actions 
are necessary to comply with regulations implementing the Summer 
Flounder, Scup, and Black Sea Bass Fishery Management Plan, and to 
ensure compliance with the Magnuson-Stevens Fishery Conservation and 
Management Act. The intent of this action is to establish harvest 
levels and other management measures based on updated scientific 
information to ensure that summer flounder are not overfished or 
subject to overfishing in 2017 and 2018, and to enact the catch limit 
adjustments that are required by the fishery management plan.

DATES: Effective January 1, 2017, through December 31, 2018.

ADDRESSES: Copies of the specifications document, consisting of a 
supplemental environmental assessment (SEA), Initial Regulatory 
Flexibility Analysis (IRFA), other supporting documents used by the 
Mid-Atlantic Fishery Management Council and its committees, and the 
original environmental assessment for the 2016-2018 summer flounder, 
scup, and black sea bass specifications are available from Dr. 
Christopher Moore, Executive Director, Mid-Atlantic Fishery Management 
Council, Suite 201, 800 North State Street, Dover, DE 19901. The 
specifications document is also accessible via the Internet at http://www.greateratlantic.fisheries.noaa.gov. The Final Regulatory 
Flexibility Analysis (FRFA) consists of the IRFA, public comments and 
responses contained in this final rule, and the summary of impacts and 
alternatives contained in this final rule. Copies of the small entity 
compliance guide are available from John K. Bullard, Regional 
Administrator, Greater Atlantic Region, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930-2298.

FOR FURTHER INFORMATION CONTACT: Emily Gilbert, Fishery Policy Analyst, 
(978) 281-9244.

SUPPLEMENTARY INFORMATION:

Background

    The Mid-Atlantic Fishery Management Council and the Atlantic States 
Marine Fisheries Commission cooperatively manage the summer flounder, 
scup, and black sea bass fisheries. The Summer Flounder, Scup, and 
Black Sea Bass Fishery Management Plan (FMP) and its implementing 
regulations outline the Council's process for establishing 
specifications. Specifications in these fisheries include various catch 
and landing subdivisions, such as the commercial and recreational 
sector annual catch limits (ACLs), annual catch targets (ACTs), and 
sector-specific landing limits (i.e., the commercial fishery quota and 
recreational harvest limit). Annual specifications may be established 
for three-year periods, and, in interim years, specifications are 
reviewed by the Council to ensure previously established multi-year 
specifications remain appropriate. The FMP and its implementing 
regulations also outline the Council's process for establishing 
specifications. Requirements of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), including the 
10 national standards, also apply to specifications.
    The most recent specifications for summer flounder, scup, and black 
sea bass fisheries were established in a December 28, 2015, final rule 
(80 FR

[[Page 93843]]

80689) that set catch limits for all three species for 2016 through 
2018. At that time, the 2015 summer flounder stock assessment update 
indicated that the stock size was declining and that overfishing was 
occurring in 2014 (see the November 9, 2015, proposed rule, 80 FR 
69179, and also the November 15, 2016, proposed rule for this action, 
81 FR 80038). The Council and NMFS expected these specifications would 
end overfishing on summer flounder and allow for stock growth. The 
background for establishing the 2016-2018 specifications, including the 
results of the 2015 assessment update, are outlined in the proposed and 
final rules for the December 2015 specifications rulemaking, and are 
not repeated here. When recommending those specifications, the Council 
and its Scientific and Statistical Committee (SSC) requested a stock 
assessment update in July 2016 to determine if the previously 
recommended acceptable biological catches (ABCs) and subsequent catch 
limits remain appropriate for 2017 and 2018. The Council and its SSC 
reviewed that assessment update when it became available in July 2016.
    As detailed in the proposed rule (81 FR 80038, November 15, 2016), 
the 2016 assessment update indicates that overfishing of the summer 
flounder stock continued through 2015 and the stock has continued its 
decline. As a result, catch limits need to be lowered to end 
overfishing and minimize the risk that the stock will become 
overfished. The assessment update noted that the consistent pattern in 
both underestimation of fishing mortality and overestimation of 
spawning stock biomass and recruitment is continuing, even though 
catches have not substantially exceeded ABC levels. In retrospect, 
these over and underestimates provided overly optimistic outlooks for 
the stock and resulted in recommended catch levels that have allowed 
overfishing to continue, even though catches have not frequently or 
excessively exceeded catch limits. Stated simply, the information from 
the latest assessment update made clear that catch advice, including 
the initial 2016-2018 catch limits, has been set too high. Based on 
this information regarding the status of the summer flounder stock, as 
updated to include data from 2015, this final rule revises the 
previously established summer flounder specifications for the 2017 and 
2018 fishing years. Another assessment update will be available next 
summer, and notice will be provided in the Federal Register on whether 
the revised 2018 specifications will remain in place or be further 
updated based on any new information.
    NMFS will establish the 2017 recreational management measures 
(i.e., minimum fish size, possession limits, and fishing seasons) for 
summer flounder, scup, and black sea bass by publishing proposed and 
final rules in the Federal Register in late winter/early spring 2017.

Revised 2017-2018 Summer Flounder Specifications

    This rule implements the Council's revised ABC recommendations and 
the commercial and recreational catch limits for fishing years 2017 and 
2018 (Table 1), as outlined in the proposed rule.
    As discussed in the proposed rule, the revised 2017 ABC and 
associated commercial and recreational catch limits are approximately 
30 percent lower than those previously established for 2017 ABC. The 
revised 2018 ABC and associated catch limits are 16 percent lower than 
those previously established for 2018. These ABC revisions follow the 
Council's standard risk policy based on the recalculated overfishing 
limits (OFLs) recommended by the assessment update.
    This action makes no other changes to the Federal commercial summer 
flounder management measures.

                                        Table 1--Summary of the Revised 2017-2018 Summer Flounder Specifications
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  2016 (current)                       2017                            2018
                                                         -----------------------------------------------------------------------------------------------
                                                            million lb          mt          million lb          mt          million lb          mt
--------------------------------------------------------------------------------------------------------------------------------------------------------
OFL.....................................................           18.06           8,194           16.76           7,600           18.69           8,476
ABC.....................................................           16.26           7,375           11.30           5,125           13.23           5,999
ABC Landings Portion....................................           13.54           6,142            9.43           4,278           11.05           5,010
ABC Discards Portion....................................            2.72           1,233            1.87             847            2.18             989
Commercial ACL..........................................            9.43           4,275            6.57           2,982            7.70           3,491
Commercial ACT..........................................            9.43           4,275            6.57           2,982            7.70           3,491
Projected Commercial Discards...........................            1.30             590            0.92             415            1.07             485
Commercial Quota........................................            8.12           3,685            5.66           2,567            6.63           3,006
Recreational ACL........................................            6.84           3,100            4.72           2,143            5.53           2,508
Recreational ACT........................................            6.84           3,100            4.72           2,143            5.53           2,508
Projected Recreational Discards.........................            1.42             643            0.95             432            1.11             504
Recreational Harvest Limit..............................            5.42           2,457            3.77           1,711            4.42           2,004
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 2 summarizes the commercial summer flounder quotas for each 
state. As mentioned in the proposed rule, this final rule announces any 
necessary commercial state quota overage reductions necessary for 
fishing year 2017. Table 2 includes percent shares as outlined in 50 
CFR 648.102(c)(1)(i), the resultant 2017 commercial quotas, quota 
overages (as needed), and the final adjusted 2017 commercial quotas. 
The 2016 quota overage is determined by comparing landings for January 
through October 2016, plus any 2015 landings overage that was not 
previously addressed in the 2016-2018 specifications, for each state. 
For Delaware, this includes continued repayment of overharvest from 
previous years. Table 3 presents the initial 2018 quota by state. The 
2018 state quota allocations are preliminary and are subject to change 
if there are overages of states' quotas carried over from a previous 
fishing year. Notice of any commercial quota adjustments to account for 
overages will be published in the Federal Register prior to the start 
of the 2018 fishing year.

[[Page 93844]]



                                        Table 2--Final State-by-State Commercial Summer Flounder Quotas for 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                2017 Initial quota         Overages through October 31,      Adjusted 2017 quota, less
                                            FMP percent  --------------------------------              2016                         overages *
                  State                        share                                     ---------------------------------------------------------------
                                                                lb              kg              lb              kg              lb              kg
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maine...................................         0.04756           2,692           1,221               0               0           2,692           1,221
New Hampshire...........................         0.00046              26              12               0               0              26              12
Massachusetts...........................         6.82046         385,988         175,081               0               0         385,988         175,081
Rhode Island............................        15.68298         887,542         402,582               0               0         887,542         402,582
Connecticut.............................         2.25708         127,734          57,939               0               0         127,734          57,939
New York................................         7.64699         432,764         196,298               0               0         432,764         196,298
New Jersey..............................        16.72499         946,512         429,331               0               0         946,512         429,330
Delaware................................         0.01779           1,007             457         -49,365         -22,392         -48,358         -21,935
Maryland................................          2.0391         115,398          52,344               0               0         115,398          52,344
Virginia................................        21.31676       1,206,372         547,201               0               0       1,206,372         547,201
North Carolina..........................        27.44584       1,553,233         704,535               0               0       1,553,233         704,535
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................             100       5,659,266       2,567,000               0               0       5,658,260       2,566,544
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes: Kilograms are as converted from pounds and may not necessarily add due to rounding. Total quota is the sum for all states with an allocation. A
  state with a negative number has a 2017 allocation of zero (0). Total adjusted 2017 quota, less overages, does not include negative allocations (i.e.,
  Delaware's overage).


                          Table 3--2018 Initial Summer Flounder State Commercial Quotas
----------------------------------------------------------------------------------------------------------------
                                                                                            2018 Quota
                              State                                 FMP percent  -------------------------------
                                                                       share            lb              kg
----------------------------------------------------------------------------------------------------------------
Maine...........................................................         0.04756           3,152           1,430
New Hampshire...................................................         0.00046              30              14
Massachusetts...................................................         6.82046         451,998         205,023
Rhode Island....................................................        15.68298       1,039,326         471,430
Connecticut.....................................................         2.25708         149,579          67,848
New York........................................................         7.64699         506,773         229,868
New Jersey......................................................        16.72499       1,108,381         502,753
Delaware........................................................         0.01779           1,179             535
Maryland........................................................          2.0391         135,133          61,295
Virginia........................................................        21.31676       1,412,682         640,782
North Carolina..................................................        27.44584       1,818,862         825,022
                                                                 -----------------------------------------------
    Total.......................................................             100       6,627,096       3,006,000
----------------------------------------------------------------------------------------------------------------

Delaware Summer Flounder Closure

    Table 2 shows that, for Delaware, the amount of overharvest from 
previous years is greater than the amount of commercial quota allocated 
to Delaware for 2017. As a result, there is no quota available for 2017 
in Delaware. The regulations at 50 CFR 648.4(b) provide that Federal 
permit holders, as a condition of their permit, must not land summer 
flounder in any state that the NMFS Greater Atlantic Region 
Administrator has determined no longer has commercial quota available 
for harvest. Therefore, landings of summer flounder in Delaware by 
vessels holding commercial Federal summer flounder permits are 
prohibited for the 2017 calendar year, unless additional quota becomes 
available through a quota transfer and is announced in the Federal 
Register. Federally permitted dealers are advised that they may not 
purchase summer flounder from federally permitted vessels that land in 
Delaware for the 2017 calendar year, unless additional quota becomes 
available through a transfer, as mentioned above.

Accountability Measure Quota Adjustment Announcements

Black Sea Bass

    Each year, NMFS publishes a notice, either in combination with the 
specifications final rule or separately, to inform the public and the 
states of any commercial summer flounder, scup, or black sea bass 
overages that are deducted from a fishing year's allocations for the 
start of the fishing year. This final rule is announcing an 2017 
accountability measure for the black sea bass commercial fishery, as 
required by the Summer Flounder, Scup, and Black Sea Bass Fishery 
Management Plan and in compliance with the regulations at 50 CFR 
648.143.
    In 2015, due to an overage of the commercial quota and higher-than-
anticipated discards, the commercial fishery exceeded its ACL. The 
fishery exceeded its 2015 commercial quota by 3.8 percent. However, 
estimated commercial dead discards of 523.3 mt were much higher than 
projected (166 mt), accounting for 44.4 percent of the total catch for 
2015. We currently estimate that 100 percent of black sea bass caught 
in trawls and gillnets die post release, with that estimate lowered to 
15 percent for black sea bass caught in commercial hook and line and 
commercial fish pots. In the event that the commercial ACL has been 
exceeded and the overage cannot be accommodated through the landings-
based accountability measure, the regulations at Sec.  648.143(b) 
require that the exact amount of the overage, in pounds, be deducted 
from a subsequent single year's commercial ACL. The 2017 commercial ACT 
is reduced by 849,363 lb (385 mt) from 3,148,200 lb (1,428 mt) to 
2,298,837 lb (1,043 mt). After estimated commercial discards are 
removed (436,515 lb; 198 mt), the 2017 commercial quota is 1,862,322 lb 
(845 mt).

[[Page 93845]]

    The results of a new black sea bass benchmark stock assessment has 
undergone peer review and a final report will be available for review 
by the SSC and the Council later this winter. Should the information 
provided by this assessment indicate a need to revise the 2017 black 
sea bass specifications, we will work with the Council to publish a 
mid-year adjustment in the Federal Register. These accountability 
measures will be reevaluated based on any information the assessment 
may provide and any updated 2015 catch information, if available, would 
be incorporated at that time.
    The 2017 commercial and recreational black sea bass catch limits 
are outlined in Table 4. The recreational catch limits are unchanged 
from the December 2015 rulemaking.

      Table 4--Revised Black Sea Bass 2017 Specifications Following
                   Accountability Measure Adjustments
------------------------------------------------------------------------
                                                             2017
                                                     -------------------
                                                       million
                                                         lb        mt
------------------------------------------------------------------------
Commercial ACL......................................      3.15     1,428
Commercial ACT \1\..................................      2.30     1,043
Projected Commercial Discards.......................      0.44       198
Commercial Quota \1\................................      1.86       845
Recreational ACL....................................      3.52     1,597
Recreational ACT....................................      3.52     1,597
Projected Recreational Discards.....................      0.70       317
Recreational Harvest Limit..........................      2.82     1,280
------------------------------------------------------------------------
\1\ Incorporates reductions for 2015 overages.

Scup

    No commercial scup quota overage is applicable to 2017; therefore, 
no adjustments to the previously implemented 2017 quota or possession 
limits are necessary. The 2017 catch limits are repeated in this 
preamble for ease of reference. Notification will be published in the 
Federal Register prior to the start of the 2018 fishing year of the 
previously established scup quotas. This notice will include any 
necessary commercial quota revision or ACL accountability measure 
should the 2016 scup quota be exceeded.
    The 2017 commercial and recreational catch limits established in 
the December 2015 rulemaking are outlined in Table 5.

                    Table 5--Scup 2017 Specifications
------------------------------------------------------------------------
                                                             2017
                                                     -------------------
                                                       million
                                                         lb        mt
------------------------------------------------------------------------
Commercial Annual Catch Limit and Annual Catch           22.15    10,047
 Target.............................................
Recreational Annual Catch Limit and Annual Catch          6.25     2,834
 Target.............................................
Commercial Quota....................................     18.38     8,337
Recreational Harvest Limit..........................      5.50     2,495
------------------------------------------------------------------------

    The 2017 scup commercial quota is divided into three commercial 
fishery quota periods, as outlined in Table 6.

                       Table 6--Commercial Scup Quota Allocations for 2017 by Quota Period
----------------------------------------------------------------------------------------------------------------
                                                                                        2017 Initial quota
                          Quota period                             Percent share -------------------------------
                                                                                        lb              mt
----------------------------------------------------------------------------------------------------------------
Winter I........................................................           45.11       8,291,190           3,761
Summer..........................................................           38.95       7,158,986           3,247
Winter II.......................................................           15.94       2,929,762           1,329
                                                                 -----------------------------------------------
    Total.......................................................           100.0      18,379,939           8,337
----------------------------------------------------------------------------------------------------------------
Note: Metric tons are as converted from pounds and may not necessarily total due to rounding.

    The quota period possession limits are unchanged from the December 
2015 rulemaking.

Comments and Responses

    On November 15, 2016, NMFS published the proposed summer flounder 
specifications for public notice and comment. NMFS received 1,231 
comments from individuals, as well as comment letters from the 
Recreational Fisheries Alliance (RFA), the Jersey Coast Anglers 
Association, On The Water L.L.C., and the Marine Trades Association of 
New Jersey. Only the comments relating to the proposed 2017 and 2018 
summer flounder specifications, including the analyses used to support 
them, are responded to below.
    We received numerous comment letters that mentioned summer flounder 
recreational management measures. The Council and Commission are 
currently reviewing necessary 2017 recreational management measures for 
summer flounder, scup, and black sea bass. Rulemaking for those 
decisions will occur in a separate action in early spring 2017 and the 
public can comment on the proposed recreational management 
recommendations at that time.
    Many comments relevant to this action used similar language or 
themes; therefore, the significant issues and concerns have been 
summarized and responded to here. No changes to the proposed 
specifications were made as a result of these comments. The 
specifications are based on the Council's recommendation which, in 
turn, was based on the SSC's advice and application of the Council Risk 
Policy to the best available scientific information.
    Comment 1: Many commenters stated that quota cuts are unnecessary 
because there is an abundance of summer flounder. Some stated they do 
not believe in the results from the various fishery independent 
surveys.
    Response: NMFS disagrees. The prevailing information from the 
assessment and multiple fish surveys indicate a continual decline in 
abundance over the past few years. The Northeast Fisheries Science 
Center (NESFC) performed a summer flounder stock assessment update in 
June 2016. This update used the peer-reviewed model developed and 
accepted during the most recent benchmark assessment completed and 
reviewed during the 57th Stock Assessment Workshop and Stock Assessment 
Review Committee (SAW/SARC 57). The Council's SSC used the results of 
the assessment update in developing its 2017 and 2018 ABC 
recommendations.
    Spawning Stock Biomass (SSB) in the assessment update was estimated 
to be 36,240 mt, based on information through 2015, the most recent 
complete

[[Page 93846]]

year of fishery dependent and independent data. The assessment update 
indicates that the summer flounder stock, as indicated by SSB, has 
declined in size each year for the past six years.
    An extensive survey data set is used in the summer flounder 
assessment model. These surveys span both state and Federal waters, are 
conducted at varying times of the year, and provide information on both 
young-of-the-year (YOY) and adult summer flounder distribution. Surveys 
include: Age compositions from the NEFSC winter, spring, and fall, 
Massachusetts spring and fall; Rhode Island fall and monthly fixed; 
Connecticut spring and fall; Delaware; New York; New Jersey; Virginia 
Institute of Marine Science (VIMS) surveys. Aggregate indices of stock 
abundance from the University of Rhode Island trawl survey and NEFSC 
larval surveys, and recruitment indices (YOY) from surveys conducted by 
the states of Massachusetts, Delaware, Maryland, and Virginia are also 
used in the model calibration.
    The Council's SSC noted that a downward trend is evident in the 
majority of these surveys' stock indices, including recruitment, since 
2011. In addition to considering the information on stock abundance, 
the SSC considered updated information on fishing mortality and 
recruitment estimates, fishery performance, and risk of depleting the 
stock to an overfished condition. Based on this evaluation and 
application of the Council's Risk Policy, the SSC noted a clear need to 
reduce catch in 2017 and 2018 from levels previously recommended in 
order to end overfishing and ensure the stock does not become 
overfished. The Council considered these recommendations and the SSC's 
rationale and agreed, recommending the catch levels being implemented 
by NMFS in this rule.
    NMFS acknowledges there is the possibility for potential changes in 
availability of fish to some surveys and to the fishery as a result of 
changes in the distribution of the summer flounder population. However, 
the available information provided by the assessment update deriving 
biomass estimates from multiple sources indicate the summer flounder 
stock is, in fact, in decline and in need of further conservation, 
consistent with the recommendations of the Council and its SSC to end 
overfishing and to prevent the stock from becoming overfished. 
Therefore, we are implementing the measures outlined in this rule's 
preamble.
    Comment 2: Many commenters stated that the most recent summer 
flounder benchmark assessment is outdated and incorrect. While some 
offered no specifics as to why they believe this to be true, others 
stated that stock assessment has failed to keep pace with the changes 
being observed in the stock as it continues to expand and move north 
and east. Some stated that although summer flounder is one of the best 
assessed fisheries in the Mid-Atlantic region, significant and rapid 
changes are being experienced in the summer flounder stock and the 
frequency of benchmark assessments has not kept pace. As a result, they 
cannot support any reductions to the summer flounder ABC until a 
benchmark assessment is conducted.
    Response: NMFS agrees that summer flounder is one of the best 
assessed fisheries in the Mid-Atlantic. Detailed information on the 
frequency of benchmark, operational, and updates to assessments can be 
found on the NEFSC Web site at: http://www.nefsc.noaa.gov/saw/.
    The 2017 and 2018 summer flounder specifications are based on an 
update to the 2013 peer-review accepted benchmark assessment model. 
That is, updated fishery independent survey information (see response 
to Comment 1) and fishery dependent information (commercial and 
recreational catch) through 2015 were used to re-run the assessment 
model to provide updated stock advice for the SSC and Council to 
consider. While a benchmark assessment typically considers new or 
alternative modeling approaches and stock assumptions, the core fishery 
data sets--surveys and catch data--are already very expansive for 
summer flounder.
    While it is possible that a benchmark assessment, if developed, may 
derive a different perception of stock status, NMFS, the Council and 
its SSC all determined the available information was reliable and 
appropriate for use, consistent with National Standard 2, to establish 
the catch limits from which these specifications are derived. Another 
assessment update is scheduled for 2017, which will provide the 
opportunity to review the adequacy of the catch limits implemented in 
this final rule for fishing year 2018.
    The next benchmark assessment will be scheduled through the 
Northeast Region Coordinating Council (NRCC). This group, comprised of 
senior leaders of both the New England and Mid-Atlantic Councils, the 
Atlantic States Marine Fisheries Commission, NMFS Greater Atlantic 
Regional Fisheries Office and the NEFSC, develops an agreed schedule 
for assessments based on need, available resources, and, importantly, 
advances in available information. This schedule is reviewed on a 
biannual basis and updates are considered at those times. There is very 
little value in developing benchmark assessments if additional 
information or advances in science have not occurred since the last 
benchmark was conducted. The NRCC will discuss assessment scheduling in 
the late spring and fall of 2017.
    Comment 3: We received comments from 841 people through a form 
letter stating that new science from Cornell University will help 
inform a more accurate stock assessment for summer flounder. These 
commenters mentioned that a new benchmark stock assessment is expected 
in early 2017, which would replace the out-of-date 2013 assessment that 
is currently used. They stated that because this new information will 
provide a more accurate indication of the true health of the fishery, 
NMFS should delay such a drastic and potentially catastrophic reduction 
until the new stock assessment, that incorporates the science from 
Cornell, is complete. Other comments alluded more generally to wanting 
new information incorporated in the stock assessment.
    Response: NMFS disagrees and clarifies that the commenters are 
incorrect regarding a benchmark assessment (see response to Comment 2). 
There is currently no benchmark stock assessment scheduled for summer 
flounder in early 2017. Commenters may be confusing this with the black 
sea bass benchmark assessment that was recently completed and peer-
reviewed. The Council's SSC has requested to review another summer 
flounder assessment update (i.e., adding 2016 survey and fishing data 
to the existing assessment model) next summer to review the status of 
the stock and see if adjustments to the 2018 ABC recommendation should 
be made. In order for such an assessment to produce new results (e.g., 
revised biological reference points), new scientific information, such 
as the final results of the Cornell study, is necessary. Once that 
information is available, the NRCC may schedule an assessment, as 
described in response to Comment 2 above.
    The Council and its SSC, as well as NMFS, are obligated by National 
Standard 2 of the Magnuson-Stevens Act to make use of the best 
available scientific information. The current assessment update, 
incorporating information from the 2015 fishing year, is the best 
available scientific information. This information informs us that the 
stock is subject to

[[Page 93847]]

overfishing, that projections of fishing mortality have been frequently 
underestimated while stock and recruitment and biomass projections have 
been overly optimistic, and that overall the stock is close to an 
overfished condition. Based on this information, catch reductions are 
necessary to end overfishing and ensure the stock does not become 
overfished. If the stock becomes overfished, the Council would be 
required to establish a formal rebuilding program, as outlined in the 
Magnuson-Stevens Act.
    Comment 4: The Jersey Coast Anglers Association stated that 
SSBmsy (i.e., the stock biomass target) is at too high a 
level and that the summer flounder fishery would be sustainable even 
with a much smaller biomass.
    Response: NMFS disagrees that the SSBmsy biomass target 
is too high. As previously mentioned, the SSB in the assessment update 
was estimated to be 36,240 mt, based on information through 2015, the 
most recent complete year of fishery dependent and independent data. 
The assessment update indicates that the summer flounder stock, as 
indicated by SSB, has declined in size each year for the past six 
years. The update estimated that SSB is at 58 percent of maximum 
sustainable yield (SSBmsy) and only 16 percent above the 
minimum stock size threshold (\1/2\ SSBmsy). If SSB 
estimates fall below this threshold, the stock is considered overfished 
and must be put into a formal rebuilding program.
    Comment 5: Ten commenters were supportive of the proposed quota 
cuts. Some noted that they have noticed a decline in summer flounder 
abundance in the last few years.
    Response: NMFS agrees and is implementing the proposed quotas for 
the reasons outlined in the preamble to this rule.
    Comment 6: Numerous commenters, including the RFA, recommended that 
NMFS approve an ABC of 16.26 million lb (7,375 mt) for both years 
(i.e., the current 2016 ABC). Others recommended maintaining the 
previously established ABCs for 2017 and 2018. The RFA commented that 
NMFS is not bound to the same requirement as the Council to develop 
ACLs that do not exceed the recommendation of its SSC. The RFA also 
stated that the Council's risk policy is too precautionary for the 
summer flounder stock and that it is not in the best interest of the 
Council or the fishing industry to defer all authority to manage risk 
to the SSC. The RFA stated that NMFS is able to set 2017 and 2018 
summer flounder ABCs that are equal to but not exceeding the OFLs 
derived in the assessment update.
    Response: NMFS disagrees that it would be appropriate for the 
agency to unilaterally implement ABCs that are higher than those 
recommended by the Council. Section 302(h)(6) of the Magnuson-Stevens 
Act provides that a Council may not develop ACLs that exceed the ABC 
recommendations of its SSC. The statute does not explicitly address 
whether NMFS may establish catch limits in excess of those 
recommendations. However, it is unnecessary in this instance for NMFS 
to resolve this question of statutory interpretation, as NMFS has 
concluded that the Council and its SSC's recommendations reflect the 
best available scientific information, and are well-founded and 
consistent with the requirements of the Magnuson-Stevens Act. NMFS, in 
reviewing the Council's recommendations, finds that its SSC did 
appropriately interpret and make use of the available stock assessment 
information and the Council's recommendation to NMFS was based on the 
ABC advice from the SSC.
    The SSC's meeting report (available from the Mid-Atlantic Council 
at: https://goo.gl/817OeI) indicates a thorough and deliberate process 
to fully address the terms of reference established for creating ABC 
advice, including application of the Council's Risk Policy. The SSC 
received detailed information on the assessment update and was able to 
ask direct questions to both Council and NEFSC staff that have 
familiarity and expertise with the summer flounder assessment and 
fishery management plan. Moreover, the SSC, in compiling its advice to 
the Council, noted several substantial concerns about the status of the 
stock in regards to persistent overfishing, likelihood of the stock 
becoming overfished if catches are not reduced, and the overall poor 
status of the stock.
    Given that there is a very clear record supporting the SSC's ABC 
derivation process as well as a clear record that the Council used the 
SSC recommendations appropriately and consistently with National 
Standard 2 to meet the intent of National Standard 1 to prevent 
overfishing, NMFS finds it would be wholly inappropriate in this 
instance to establish catch limits higher than those recommended by the 
Council and its SSC. Moreover, setting ABC equal to OFL would remove 
any consideration of scientific and management uncertainty to the 
summer flounder stock/fishery. The SSC's report and the benchmark 
assessment model outline several sources of uncertainty for the summer 
flounder stock assessment. As a result, it would be inappropriate for 
NMFS to assume there is no need to offset ABC from OFL.
    Comment 7: Many mentioned that the summer flounder recreational 
harvest limit will be reduced up to 40 percent due to estimated 
declines in the stock and because the recreational sector is estimated 
to have exceeded its 2016 harvest limit. They recommended that NMFS 
assume that the recreational sector met, but did not exceed its 
recreational harvest of 5.42 million lb (2,458 mt) in 2016.
    Response: This action will reduce the 2017 recreational harvest 
limit by approximately 30 percent from the 2016 limit (from 5.42 
million lb (2,457 mt) to 3.77 million lb (1,711 mt)). NMFS clarifies 
that any additional reduction necessary to prevent an overage of the 
2017 recreational harvest limit due to estimated 2016 overages will be 
determined after the end of the 2016 fishing year and announced through 
rulemaking that will establish the 2017 summer flounder, scup, and 
black sea bass recreational management measures. Although preliminary 
Marine Recreational Information Program estimates indicate that 2016 
recreational harvest limit overages may necessitate a total reduction 
closer to 40 percent, this amount is subject to change and may 
ultimately be greater or less than that amount. As for the suggestion 
to assume the recreational sector met but did not exceed its 
recreational harvest limit for 2016, the Council must recommend, and 
NMFS is required to implement, recreational management measures that 
will constrain landings to the recreational harvest limit for a given 
fishing year. If data show that the fishery exceeded its limit in 2016, 
this informs the Council and NMFS about the extent to which adjustments 
to recreational management measures are needed to appropriately 
constrain catch in 2017. The determination of any 2016 overage, and how 
that will affect 2017 recreational management measures, is outside the 
scope of this action. A separate notice-and-comment rulemaking for the 
2017 recreational summer flounder management measures will be conducted 
in late winter/early spring of 2017.
    Comment 8: The majority of commenters mentioned that these catch 
limit reductions would be very difficult for the fishing industry, 
particularly the recreational sector, and coastal communities. Some 
stated that these cuts are occurring with no consideration to the 
communities who depend on summer flounder fishing for their 
livelihoods. Others noted their concerns that these cuts would likely 
drive them

[[Page 93848]]

out of business. Some recreational anglers stated they would no longer 
fish if these cuts resulted in lower bag limits, higher minimum sizes, 
or shorter seasons.
    Response: NMFS recognizes that these revised summer flounder catch 
limits, representing nearly a 30-percent decrease from 2016 catch 
levels, will result in constrained recreational and commercial 
fisheries. The Council's SEA and Regulatory Flexibility Act Analysis 
provides information on the potential impacts of these reductions for 
each fishery. As for the recreational fishery, the effects of specific 
recreational management measures (i.e., bag limits, size limits, and 
seasonal closures) will be described and analyzed in the action that 
implements those measures in 2017. The overall potential revenue 
reduction associated with the 2017 commercial quota reduction is 
approximately $7.7 million. Catch limits must meet conservation 
objectives and satisfy applicable Magnuson-Stevens Act requirements to 
end overfishing and prevent fish stocks from becoming overfished, even 
if they result in negative economic impacts. The Council selected the 
ABC recommended by the SSC, which is the highest possible ABC allowed 
that will end overfishing. The Council based its recommendations for 
the 2017 and 2018 summer flounder catch limits on the advice of its 
SSC, which, as explained further in response to previous comments, 
represents the best scientific information available.
    Comment 9: One commenter encouraged NMFS to hold more meetings in 
different areas so that more fishermen could participate.
    Response: The public had the opportunity to provide comments during 
the development of the 2017 and 2018 catch limits at the following 
meetings:
     Summer Flounder, Scup, and Black Sea Bass Monitoring 
Committee Meeting; July 25, 2016 (webinar);
     Summer Flounder, Scup, and Black Sea Bass Advisory Panel 
Meetings; July 29, 2016 (webinar);
     Joint Council and Commission meeting to develop 2017 and 
2018 catch limit recommendations; August 9, 2016 (Virginia Beach, VA).
    Additionally, there have been opportunities to comment on the 
development of 2017 recreational management measures at the following 
meetings:
     Summer Flounder, Scup, and Black Sea Bass Monitoring 
Committee Meetings; November 9-10, 2016 (Baltimore, MD);
     Summer Flounder, Scup, and Black Sea Bass Advisory Panel 
Meeting; November 17, 2016 (webinar);
     Joint Council and Commission meeting to develop 2017 
recreational management measure recommendations; December 12-15, 2016 
(Baltimore, MD).
    These meetings are scheduled by the Council, which is responsible 
for the development of catch recommendations to NMFS. Council-related 
meetings are generally held annually at similar dates and are 
accessible through webinar. NMFS encourages interested parties to check 
the Council's Web site for information on how to access upcoming 
meetings (http://www.mafmc.org).
    Furthermore, the measures of this rule have been subject to public 
comment through proposed rulemaking, as required under the 
Administrative Procedure Act.
    Comment 10: A few commenters noted frustration that overfishing did 
not occur in their states, either recreationally or commercially, and 
questioned why fishermen from that state are being punished for 
overfishing that occurred in other states.
    Response: In the case of summer flounder, overfishing is not the 
result of states exceeding individual commercial quotas or recreational 
targets, but rather results from the coastwide sector allocations being 
set at a level that is not sustainable for the stock overall. Based on 
the retrospective patterns in the assessment that have continually 
underestimated previous years' fishing mortality and overestimated 
stock size and recruitment, catch limits have been set at optimistic, 
higher levels. While catch has largely stayed within these levels, 
further evaluation indicates that the catch limits themselves for prior 
years, including 2016 and those previously established for 2017 and 
2018, were set too high and overfishing and stock depletion continued 
as a result. This is why the SSC recommended a substantial reduction 
for 2017 and 2018 to adjust for and correct this persistent catch 
setting error and to end the cycle of overfishing. NMFS agrees with the 
Council's recommendation based on the ABC advice of its SSC and we are 
implementing the revised, lower ABCs outlined in the preamble as a 
result.
    Comment 11: Numerous commenters implied that the summer flounder 
management measures are partial to the commercial industry. One issue 
of particular concern raised by commenters is that the commercial 
minimum size limit is smaller than those established for the 
recreational sector. Additionally, some stated the catch limits were 
allocated unfairly and the commercial fishery's landings limits should 
be reduced. Many commented that the commercial fishing industry is 
negatively affecting the resource more than the recreational sector, 
particularly with respect to discarding. Many suggestions on commercial 
management measures were suggested (e.g., prohibit commercial fishing 
within 10 miles of the coastline, limit the amount of commercial 
fishing allowed in the winter months around summer flounder spawning 
grounds, etc.).
    Response: The Council evaluated the available fishery performance 
data and decided not to recommend adjusting the commercial minimum 
summer flounder size or other commercial fishery measures as part of 
the 2017 and 2018 specifications revision. Because NMFS' authority is 
to approve, partially approve, or disapprove Council-recommended 
measures, the commenters' suggestions for changes to the commercial 
fishery are outside the scope of this action. The Council can consider 
annual changes to several management measures, including commercial 
minimum fish size, during its specification setting process that 
typically occurs at the August meeting. NMFS encourages those with 
concerns about the commercial fishery voice those issues directly to 
the Council during the appropriate specifications development cycle in 
2017. The Council, working with the Commission, is currently developing 
a summer flounder amendment that is potentially reviewing state-by-
state commercial and sector allocations. NMFS encourages commenters to 
stay involved with the Council process during this amendment's 
development. Other management measures, such as seasonal closures or 
prohibiting fishing within certain areas, must also be considered 
through Council and Commission actions and are outside the scope of 
this action.
    Comment 12: One commenter mentioned the need for more enforcement, 
stating that too many people are keeping undersized fish or exceeding 
their bag limits.
    Response: NMFS agrees that adequate enforcement is essential to 
help ensure catch limits are effective and we will continue to work 
closely with our state partners under our joint enforcement agreements. 
NMFS encourages people to call the NMFS Office of Law Enforcement's 
hotline at (800) 853-1964 if they witness illegal fishing activity.
    Comment 13: One commenter suggested that observer data be reviewed 
and the specifications should

[[Page 93849]]

be updated appropriately following that review.
    Response: The commercial discard estimates using observer data are 
included in the annual stock assessment updates that are utilized in 
deriving OFL recommendations; therefore, observer data have already 
been reviewed and incorporated into these specifications.
    Comment 14: Four commenters mentioned concerns over the impact of 
foreign fishing in U.S. waters and its impact on the summer flounder 
stock.
    Response: NMFS agrees that it is important to minimize the impact 
of foreign fishing vessels in the U.S. Exclusive Economic Zone (EEZ), 
which is why Congress enacted the Magnuson-Stevens Act in 1976. The 
Magnuson-Stevens Act prohibited foreign fishing within the EEZ, except 
under special circumstances. There is currently no impact from foreign 
fishing on summer flounder within the EEZ.

Classification

    The Administrator, Greater Atlantic Region, NMFS, determined that 
this final rule is necessary for the conservation and management of the 
summer flounder fishery and that it is consistent with the Magnuson-
Stevens Act and other applicable laws.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under 5 U.S.C. 553(d)(3) to waive the 30-day delay of effectiveness 
period for this rule, to ensure that the final specifications are in 
place on January 1, 2017. This action establishes the final 
specifications (i.e., annual catch limits) for the summer flounder and 
the final commercial quota for the black sea bass fishery for the 2017 
fishing year, which begins on January 1, 2017.
    This rule is being issued at the earliest possible date. 
Preparation of the proposed rule by NMFS was dependent on the 
submission of the SEA/IRFA in support of the specifications that is 
developed by the Council. A complete document was received by NMFS in 
mid-October 2016. Documentation in support of the Council's recommended 
specifications is required for NMFS to provide the public with 
information from the environmental and economic analyses, as required 
for rulemaking, and to evaluate the consistency of the Council's 
recommendation with the Magnuson-Stevens Act and other applicable law. 
The proposed rule published on November 15, 2016, with a 15-day comment 
period ending November 30, 2016. Publication of the summer flounder 
specification at the start of the fishing year that begins January 1 of 
each fishing year, is required by the order of Judge Robert Doumar in 
North Carolina Fisheries Association v. Daley. Although there are 
currently established 2017 commercial and recreational catch limits for 
summer flounder, fishing at these levels would result in overfishing of 
the stock. The existing catch limits need to be replaced by the catch 
limits implemented through this action, which represent a necessary 30-
percent reduction.
    If the 30-day delay in effectiveness is not waived, the catch limit 
currently in place for the summer flounder fishery on January 1, 2017, 
will be too high, will be inconsistent with the prevailing scientific 
advice, and will perpetuate overfishing on the stock in a period of 
consistently poor recruitment, representing a substantial risk to the 
stock. Allowing fishing at this level is inconsistent with the 
Magnuson-Stevens Act, National Standard 1, and National Standard 2. The 
summer flounder fishery is expected, based on historic participation 
and harvest patterns, to be very active at the start of the fishing 
season in 2017. Without these revised specifications in place on 
January 1, 2017, individual states will not be held to the reduced 
catch limits and will be unable to set appropriate commercial 
possession and/or trip limits, which apportion the catch over the 
entirety of the calendar year. Disproportionately large harvest 
occurring within the first weeks of 2017 would disadvantage some gear 
sectors or owners and operators of smaller vessels that typically fish 
later in the fishing season. It is reasonable to conclude that the 
commercial fishing fleet possesses sufficient capacity to exceed the 
established commercial quota for summer flounder before the regulations 
would become effective, should these updated specifications not be in 
place on January 1, 2017. Should this occur, the fishing mortality 
objectives for summer flounder would be compromised, thus undermining 
the intent of the rule. Additionally, if states are unable to constrain 
harvest within these revised specifications at the start of the fishing 
year, resulting in overages in the total 2017 catch limits, these 
overages will count against the 2018 fishing year limits, further 
impacting the fishing fleet. Similarly, the commercial fishing fleet 
could potentially exceed the revised commercial black sea bass catch 
limit before these specifications would be effective, if not in place 
by January 1, 2017. To ensure the effectiveness of this required 
accountability measure, the black sea bass catch limit revision must 
also be in place before the start of the fishing year. For all of these 
reasons, a 30-day delay in effectiveness would be contrary to the 
public interest. Therefore, NMFS is waiving the requirement to ensure 
the revised summer flounder specifications are in place on January 1, 
2017.
    These specifications are exempt from the procedures of Executive 
Order 12866.
    This final rule does not duplicate, conflict, or overlap with any 
existing Federal rules.
    A FRFA was prepared pursuant to 5 U.S.C. 604(a), and incorporates 
the IRFA, a summary of any significant issues raised by the public 
comments in response to the IRFA and NMFS's responses to those 
comments, and a summary of the analyses completed to support the 
action. A copy of the EA/IRFA is available from the Council (see 
ADDRESSES).
    The preamble to the proposed rule included a detailed summary of 
the analyses contained in the IRFA, and that discussion is not repeated 
here.

Final Regulatory Flexibility Analysis

A Summary of Significant Issues Raised by the Public in Response to the 
Summary of the Agency's Assessment of Such Issues, and a Statement of 
Any Changes Made in the Final Rule as a Result

    Our responses to all of the comments received on the proposed rule, 
including those that raised significant issues with the proposed 
action, can be found in the Comments and Responses section of this 
rule. None of the comments received raised specific issues regarding 
the economic analyses summarized in the IRFA. As outlined in Comment 9, 
commenters were generally concerned with the impacts of a 30-percent 
reduction on the fishing industry and shoreside businesses. Most 
comments were focused on the recreational fishery. Our response to 
those comments are not repeated here. No changes to the proposed rule 
were required to be made as a result of public comments.

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    On December 29, 2015, NMFS issued a final rule establishing a small 
business size standard of $11 million in annual gross receipts for all 
businesses primarily engaged in the commercial fishing industry and $7 
million in annual gross receipts for all businesses primarily engaged 
in for-hire fishing activity (NAICS 11411) for Regulatory Flexibility 
Act (RFA) compliance purposes only (80 FR 81194, December 29, 2015). 
The North American Industry

[[Page 93850]]

Classification System (NAICS) is the standard used by Federal 
statistical agencies in classifying business establishments for the 
purpose of collecting, analyzing, and publishing statistical data 
related to the U.S. business economy.
    The categories of small entities likely to be affected by this 
action include commercial and charter/party vessel owners holding an 
active Federal permit for summer flounder, as well as owners of vessels 
that fish for summer flounder in state waters. The Council estimates 
that the 2017 and 2018 summer flounder specifications could affect 958 
small entities and six large entities, assuming average revenues for 
the 2013-2015 period.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    No additional reporting, recordkeeping, or other compliance 
requirements are included in this final rule.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes

    Specification of commercial quotas and possession limits is 
constrained by the conservation objectives set forth in the FMP and 
implemented at 50 CFR part 648 under the authority of the Magnuson-
Stevens Act. Economic impacts of changes in year-to-year quota 
specifications may be offset by adjustments to such measures as 
commercial fish sizes, changes to mesh sizes, gear restrictions, or 
possession and trip limits that may increase efficiency or value of the 
fishery. The Council recommended no such management measure changes, so 
none are implemented in this final rule. Therefore, the economic impact 
analysis of the action is evaluated on the different levels of quota 
specified in the alternatives. The ability of NMFS to minimize economic 
impacts for this action is constrained by quota levels that provide the 
maximum availability of fish while still ensuring that the required 
objectives and directives of the FMP, its implementing regulations, and 
the Magnuson-Stevens Act are met. In particular, the Council's SSC has 
made recommendations for the 2017 and 2018 ABC level for the summer 
flounder stock designed to end overfishing and foster stock growth. 
NMFS considers these recommendations to be consistent with National 
Standard 2 of the Magnuson-Stevens Act, which requires that the best 
available scientific information be used in fishery decision making. 
This action sets commercial quotas and recreational harvest limits for 
the summer flounder fishery for the 2017 and 2018 fishing years that 
achieve the objectives outlined in the preamble of this rule. The 
landings limits for 2017 include a commercial quota of 5.66 million lb 
(2,567 mt) and a recreational harvest limit of 3.77 million lb (1,711 
mt). For 2018, the measures include an initial commercial quota of 6.63 
million lb (3,006 mt) and a recreational harvest limit of 4.42 million 
lb (2,004 mt).
    The only other alternatives considered were the status quo 
alternatives that are identical to the summer flounder landings limits 
implemented in December 2015 (i.e., the previously implemented 2017 and 
2018 levels). If these specifications remained in place, they would 
have greater positive socioeconomic impacts than the preferred 
alternatives. However, these alternatives were not selected as 
preferred, as they do not address the new scientific information 
regarding summer flounder stock status, and, therefore, would likely 
result in overfishing, which would be inconsistent with the FMP, 
National Standard 1 guidance under the Magnuson-Stevens Act, and the 
most recent advice of the Council's SSC. Because these alternatives are 
inconsistent with the purpose and need of this action, they are not 
considered further under this analysis.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules.
    As part of this rulemaking process, a small entity compliance guide 
will be sent to all holders of Federal permits issued for the summer 
flounder, scup, and black sea bass fisheries. In addition, copies of 
this final rule and guide (i.e., permit holder letter) are available 
from NMFS (see ADDRESSES) and at the following Web site: http://www.greateratlantic.fisheries.noaa.gov.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: December 19, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2016-30876 Filed 12-21-16; 8:45 am]
 BILLING CODE 3510-22-P